[nucleo]

Hi
I have had a parcel of land that was rated to Mr A for 14 years on which he paid the rates. I was notified recently by Mr A’s solicitor that he didn’t own the land and wondered why Council had been sending him the notices. Mr A was not the owner according to the title. I contacted the VG only to find out that they also had the land in the name of Mr A but advise me to change it to the name that was on the title and they did the same. The solicitor for Mr A is now asking what interest rate Council will be paying if Mr A requests a refund of the rates he had paid. Can anyone advise if he can claim a refund for the 14 years he paid the rates and if Council is obliged to pay him interest?

[James Bentley]

Hi Adele, I felt my skin crawling while reading your post. Certainly not an enviable situation. If an historical search indicates that Mr A was never the registered proprietor (life tenancy considerations aside), I think it may be difficult to argue that he was ever liable to pay rates under s560. However, his conduct over 14 years indicates that he definitely thought he was liable to pay, indeed that conduct is entirely responsible for the position in which you find yourself. Is Council supposed to contact every ratepayer after every rates payment to confirm that he/she intended to make that payment?? Regarding interest, I would say “no” in principle based on a reading of ss593 & 594. Although different scenarios, both sections refer to refunding excess payments of rates without a whisper of any interest payable by Council. Good luck, and keep us updated.

[nucleo]

Hi James
Thanks for your comments.

[nucleo]

Is there anyone else out there with an opinion on this one?

[Cindy Allan]

Hi Lovely. We are meeting this week and will ask the meeting their opinion. Interesting though.

[Michael Cherry]

Hey Adele,

Not sure of all the facts but I have to agree with James on this one for two reasons really:

1. There was never any liability by Mr A to pay the rates in terms of S560,

2. I am no lawyer but I think that decision within David Securities Pty Ltd v Commonwealth Bank of
Australia about unjust enrichment is relevant – the judgement goes along the lines of
“… the payer will be entitled prima facie to recover moneys paid under a
mistake if it appears that the moneys were paid by the payer in the mistaken
belief that he or she was under a legal obligation to pay the moneys or that the
payee was legally entitled to payment of the moneys. Such a mistake would
be causative of the payment.”
Based on these two factors I think Mr A is entitled to restitution for the amounts paid by mistake and that Council has been “unjustly enriched”.
I can’t find any basis for the repayment of interest however.

Cheers

[James Bentley]

If Council has only received a single payment of rates maybe it could be argued that no unjust enrichment occurred because Council simply received the amount that was levied…the source of the payment is irrelevant. Of course Mr A would take a different view…

[nucleo]

Hi James
Mr A paid rates regularly for 14 years and now has realised he doesn’t own the property.

[Ian Clayton]

Hi Adele,

I agree that Mr A may have some basis to be able to claim his rates payments back, but I don’t think interest would be payable.

It sounds like Council issued the rates in good faith based on the information it held, and the amounts were paid voluntarily.

I think I would respond by saying that, under the circumstances, you’re not aware of any legislation that would entitle Mr A to a refund or any interest payment. If they consider that he is, I would invite them to particularise their contention.

It would be simpler to consider the basis they put forward for the claim, rather than to come up with a defence to the general request from scratch.

Cheers
Ian

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